Watts v. Chittenden

301 Conn. 575

22 A.3d 1214

John D. WATTS

v.Heather CHITTENDEN.

No. 18474.

Supreme Court of Connecticut.

Argued Feb. 17, 2011.Decided July 19, 2011.

James F. Sullivan, Hartford, with whom, on the brief, was Elizabeth S. Tanaka, for the appellant (plaintiff).Michael S. Hillis, New Haven, for the appellee (defendant).NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.EVELEIGH, J.

The plaintiff, John D. Watts, appeals, following our grant of his petition for certification, from the judgment of the Appellate Court, which reversed the judgment of the trial court awarding the plaintiff damages for intentional infliction of emotional distress on the part of the defendant, Heather Chittenden. On appeal, the plaintiff claims that the Appellate Court improperly reversed the judgment of the trial court by concluding that the existence of an original duty must be established before applying the continuing course of conduct doctrine to toll the statute of limitations in a nonnegligence cause of action for intentional infliction of emotional distress. We agree with the plaintiff and, accordingly, reverse the judgment of the Appellate Court.

The Appellate Court opinion recites the following facts, as found by the trial court, and procedural history pertinent to the plaintiff's appeal. “The plaintiff and the defendant are former husband and wife. They were married in July, 1993; however, the defendant filed a dissolution of marriage action in the Superior Court in March, 1999. During the course of the marriage, the parties had two daughters, born in 1995 and 1996. Following the dissolution, the defendant was granted joint custody and visitation rights. Several days before the dissolution action was filed, the defendant transferred her children to a new pediatrician. Specifically, the children saw Janet Murphy, a nurse practitioner, whom the defendant, also a nurse practitioner, had met while a student in a class taught by Murphy on the subject of sexual molestation of children.

“At approximately 10:30 p.m. on June 3, 1999, the defendant [telephoned] the department of children and families (department) to report that her eldest daughter had been abused sexually by the plaintiff. These allegations were then relayed by the department to the state police. The same report was also made by the defendant to Dawn Torres, a pediatrician. Thereafter, on June 10, 1999, the defendant met with [Anthony Buglione and James McGlynn, detectives with] the state police and reiterated her report that her daughter had been abused sexually by the plaintiff. She gave a five page written statement to the police providing details of her claims. Following this report, the state police contacted the plaintiff and requested pubic hair samples to be used in connection with the criminal investigation. On July 1, 1999, the investigation concluded in the absence of any evidence to suggest that the plaintiff was abusing his daughter.

“On July 21, 1999, McGlynn received another report from the department, which was based on new allegations made by the defendant regarding the plaintiff's abuse of their eldest daughter. On August 19, 1999, the defendant told McGlynn that the plaintiff continued to abuse their daughter, and, as a result, the investigation was reopened. During the course of the investigation, the daughter was evaluated by the Yale Child Sexual Abuse Clinic at Yale–New Haven Hospital (clinic). The clinic reported that the daughter indicated repeatedly during interviews that the plaintiff had not abused her. She did relate, however, that the defendant had been touching her vaginal area and saying, ‘this is what daddy does.’ The investigation stemming from this complaint was closed on January 11, 2000.

“Shortly thereafter, on January 19, 2000, the department received a report from Livia Orsis–Abdo, a physician in Southport, who stated that she had been told by the parties' youngest daughter that the plaintiff had abused her sexually. As a result, the investigation against the plaintiff was reopened once again. The police eventually concluded that there was no evidence to support the allegations against the plaintiff but that there was substantial evidence that the defendant had sexually abused her two daughters while telling them that it ‘was what daddy [did].’

“As a result of the investigation, the defendant was arrested and charged in a substitute information with two counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53–21(1) and (2), false reporting of an incident in violation of General Statutes (Rev. to 1999) § 53a–180 (a)(3)(A), false statement in the second degree in violation of General Statutes § 53a–157b, attempt to commit malicious prosecution in violation of General Statutes §§ 53a–49 (a)(2) and 53–39, and sexual assault in the fourth degree in violation of General Statutes (Rev. to 1999) § 53a–73a (a)(1). On April 11, 2002, the defendant pleaded guilty, as a part of a plea agreement, to falsely reporting an incident and attempt to commit malicious prosecution. In the statement of facts read into the record by the prosecutor, the defendant acknowledged that the allegations of sexual abuse asserted against the plaintiff were false and that the defendant made the false reports in an effort to have the plaintiff arrested. On May 30, 2002, the defendant was sentenced to a term of one year incarceration, execution suspended, and three years probation on each count.

“Following her guilty plea on April 11, 2002, the defendant made repeated accusations to family therapists regarding the plaintiff's continuing sexual abuse of his daughters. Specifically, in 2004, she told Nina Rossamondo, a family therapist, that the plaintiff had abused sexually one or more of his children. In May, 2006, she also told Peter Kossef, a family therapist, that the plaintiff had molested the eldest daughter at least once.

“On August 29, 2005, the plaintiff filed a one count complaint sounding in intentional infliction of emotional distress. The defendant filed an answer on October 20, 2005, in which she asserted as a special defense that the action was time barred under the statute of limitations. The plaintiff filed a reply, denying this special defense on May 22, 2006. On June 11, 2007, the plaintiff sought, and was granted, request for leave to amend his complaint to conform the pleadings to the proof by asserting the specific manner in which the defendant's tortious conduct continued to 2006. Subsequently, the defendant amended her special defenses on September 20, 2007, to assert that the statements she made were privileged and that the claims were barred by the statute of limitations. The plaintiff filed a general denial to the defendant's amended special defenses on October 31, 2007.

“A trial before the court was conducted on May 1 and 2, June 11 and September 20, 2007. The court found in favor of the plaintiff on January 25, 2008....” Watts v. Chittenden, 115 Conn.App. 404, 406–408, 972 A.2d 770 (2009). In doing so, the trial court rejected the defendant's special defense that the plaintiff's cause of action was barred by the statute of limitations. Specifically, the trial court determined that the plaintiff's claim was based on a continuing course of conduct by the defendant and that this continuing course of conduct tolled the statute of limitations.¹ The defendant then appealed from the judgment of the trial court to the Appellate Court.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court improperly concluded that the plaintiff's claim was not time barred because: (1) the plaintiff did not submit any evidence of actionable conduct within the period of time prescribed to bring a claim for intentional infliction of emotional distress; and (2) the continuing course of conduct doctrine does not serve to toll the applicable statute of limitations in this intentional infliction of emotional distress claim. Id., at 409, 972 A.2d 770. The Appellate Court agreed with the defendant, concluding that application of the continuing course of conduct doctrine “is premised necessarily on the existence of a duty in effect at the time of the original wrong.” Id., at 410, 972 A.2d 770. The Appellate Court reversed the judgment of the trial court concluding that the plaintiff had failed to prove the existence of a cognizable duty and that, “[i]n the absence of a breach of a cognizable duty ... the [trial] court improperly applied the continuing course of conduct doctrine to toll the statute of limitations.” Id., at 413, 972 A.2d 770.

Thereafter, the plaintiff sought certification to appeal from the judgment of the Appellate Court. We granted the plaintiff's petition for certification to appeal, limited to the following issues: “1. Whether the Appellate Court, based on the record before it, properly reversed the trial court's decision by holding that the existence of an original duty must be determined before applying the continuing course of conduct doctrine to toll the statute of limitations in a nonnegligence cause of action for intentional infliction of emotional distress?

“2. Assuming that the Appellate Court [properly] held that the existence of an original duty must be determined before applying the continuing course of conduct doctrine, whether that court properly determined that there was no duty in this case?” ² Watts v. Chittenden, 293 Conn. 932, 932–33, 981 A.2d 1077 (2009).

On appeal to this court, the plaintiff asserts that the Appellate Court improperly concluded that the existence of an original duty must be established before applying the continuing course of conduct doctrine to toll the statute of limitations in a nonnegligence cause of action for intentional infliction of emotional distress. Specifically, the plaintiff claims that because duty is not an element of a cause of action for intentional infliction of emotional distress, it is...